State v. Miller

545 P.3d 388

STATE of Washington, Respondent,

v.James Michael MILLER, Appellant.

No. 38969-3-III

Court of Appeals of Washington, Division 3.

Filed March 28, 2024

Appeal from Kittitas Superior Court, Docket No: 21-1-00291-4, Honorable Scott R. Sparks, Judge.

Jennifer L. Dobson, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Matthew David Mills, Kittitas County Prosecuting Attorney’s Office, 205 W. 5th Ave. Ste. 213, Ellensburg, WA, 98926-2887, for Respondent.

PUBLISHED OPINION

Pennell, J.

¶1 RCW 77.15.080 authorizes Department of Fish and Wildlife (DFW) officers to perform a brief investigatory stop when "articulable facts" indicate a person is "engaged in … hunting activities." Relying on this statute, DFW officers stopped James Miller’s sport-utility vehicle (SUV) in the Colockum Wildlife Area when they saw him wearing an orange sweatshirt and slowly driving down a bumpy road during modem firearm deer and elk season. In the course of the stop, officers discovered a loaded shotgun and rifle on the passenger seat and Mr. Miller was charged with misdemeanor firearms violations. Prior to trial, Mr. Miller moved to suppress evidence of the loaded firearms, arguing they were discovered as a result of an illegal stop. The trial court denied the motion and Mr. Miller was convicted. We now reverse.

¶2 By its plain terms, RCW 77.15.080 permits an investigative stop only when the totality of the circumstances demonstrates a substantial possibility that the target of the stop is actively engaged in hunting. Rarely, if ever, will a person in the act of driving a vehicle be "engaged in … hunting activities." RCW 77.15.080. Hunting and driving are incompatible. To the extent this court’s prior opinion in Schlegel v. Department of Licensing, 137 Wash. App. 364, 153 P.3d 244 (2007) states otherwise, we respectfully disagree with that decision.

¶3 Mr. Miller was doing nothing more than driving his SUV at the time DFW officers performed the stop. This was not a hunting activity. The stop therefore did not fall under the purview of RCW 77.15.080 and Mr. Miller’s motion to suppress should have been granted. We reverse Mr. Miller’s conviction and remand for further proceedings.

FACTS

¶4 DFW officers were patrolling the Colockum Wildlife Area during modern firearm deer and elk season when they observed an SUV traveling slowly on a bumpy "green dot road." Clerk’s Papers (CP) at 25. In partnership with the Department of Natural Resources and private landowners in Kittitas and Yakima counties, green dot roads are cooperatively managed by DFW for use by a "wide variety of recreationalists" to access "camping, hunting, wildlife viewing, and ATV [all-terrain vehicle] and off-road vehicle riding, while protecting sensitive habitat from damage caused by motorized vehicles." Recreational Opportunities and Rules on Your WDFW Public Lands, Wash. Dep’t of Fish & Wildlife, https://wdfw.wa.gov/about/wdfw-lands/public-conduct#green-dot [https://perma.cc/H5TD-KNXN]. The DFW officers observed the driver of the SUV—later identified as James Miller—was wearing an orange sweatshirt. The officers believed Mr. Miller was "engaged in … hunting activities." RCW 77.15.080. As a result, they stopped the SUV to inquire as to compliance with state game and licensing regulations.

¶5 During the stop, the officers observed a rifle and shotgun lying on the SUV’s passenger seat. They asked to check the firearms to verify they were unloaded. Mr. Miller acquiesced and a live round was found in the chamber of the shotgun. Mr. Miller was cited for possessing a loaded shotgun in his vehicle in violation of RCW 77.15.460(1), a misdemeanor offense. The State subsequently charged Mr. Miller with that offense in Kittitas County District Court.¹

¶6 During pretrial proceedings, Mr. Miller filed a motion to suppress the evidence obtained by the DFW officers, arguing it was the fruit of an unconstitutional seizure, and to dismiss the charges. The district court denied the motion. The court found the DFW officers reasonably believed Mr. Miller was "engaged in … hunting activities" and thus the stop was authorized under RCW 77.15.080. The case proceeded to a jury trial and Mr. Miller was convicted.

¶7 Mr. Miller appealed his conviction to the superior court, arguing the district court erred by denying his motion to suppress. The superior court denied the appeal, relying on this court’s interpretation of RCW 77.15.080 in Schlegel. See 137 Wash. App. at 366, 370-71, 153 P.3d 244. We granted discretionary review.

ANALYSIS

¶8 Mr. Miller argues RCW 77.15.080 did not authorize DFW officers to stop his SUV and, if it did, the stop violated the Fourth Amendment to the United States Constitution. We may avoid reaching Mr. Miller’s constitutional argument if we can resolve his case on statutory grounds. See State v. Speaks, 119 Wash.2d 204, 207, 829 P.2d 1096 (1992). Thus, we begin by interpreting RCW 77.15.080. Our review is de novo. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007).

¶9 When interpreting a statute, our "fundamental objective" is to effectuate the legislature’s intent. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wash.2d 421, 435, 395 P.3d 1031 (2017). If a statute’s plain text is unambiguous—that is, where it is subject to only one reasonable interpretation—this court’s task begins and ends with that plain language. State v. Delgado, 148 Wash.2d 723, 726-27, 63 P.3d 792 (2003).

¶10 In pertinent part, RCW 77.15.080 reads:

Based upon articulable facts that a person is engaged in fishing, harvesting, or hunting activities, fish and wildlife officers and ex officio fish and wildlife officers have the authority to temporarily stop the person and check for valid licenses, tags, permits, stamps, or catch record cards, and to inspect all fish, shellfish, seaweed, and wildlife in possession as well as the equipment being used to ensure compliance with the requirements of this title.

(Emphasis added.) Three terms are pertinent to our statutory analysis: "articulable facts," "is," and "hunting activities." We discuss each in turn.

[1–3] ¶11 RCW 77.15.080 requires law enforcement to have "articulable facts" indicating a regulated activity is underway in order to perform a stop. This term of art has been interpreted as referencing the familiar Terry² stop standard. See Schlegel, 137 Wash. App. at 369, 153 P.3d 244. Under Terry, officers must have more than a "mere hunch[ ]" to perform a stop. State v. Doughty, 170 Wash.2d 57, 68, 239 P.3d 573 (2010). "[A] traffic stop significantly curtails the ‘freedom of action’ of the driver and [any] passengers." Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Thus, to justify a stop, the totality of the circumstances known to law enforcement must demonstrate a "substantial possibility" that there is a basis for the stop. State v. Kennedy, 107 Wash.2d 1, 6, 726 P.2d 445 (1986). In the instant context, there must be a substantial possibility of "fishing, harvesting, or hunting activities" for a stop to be proper under RCW 77.15.080.

[4] ¶12 As relevant here, RCW 77.15.080 only permits the stop of a person who "is" engaged in hunting activities. The use of the word "is" carries legal significance. See In re Dependency of D.L.B., 188 Wash, App. 905, 917, 355 P.3d 345 (2015). By selecting "is"— the present tense of the verb "to be"—the legislature indicated its intent that the statute apply only to present, ongoing activities. Past or future conduct is not covered. Thus, it is not enough that an officer suspects a person has recently been engaged in hunting or may soon be so engaged.

¶13 Finally, we examine the term "hunting activities." Here, " ‘[t]o hunt’ " means "an effort to kill, injure, harass, harvest, or capture a wild animal or wild bird." RCW 77.08.010(33). Our Supreme Court has further explained that an individual begins to hunt "when they make an effort to kill or injure … game in an area where such animals may reasonably be expected." State v. Walsh, 123 Wash.2d 741, 748, 870 P.2d 974 (1994). And an "activity" is simply the "collective acts" of one or more people "engaged in a common enterprise." Black’s Law Dictionary 42 (11th ed. 2019).

[5] ¶14 Piecing the foregoing terms together, we interpret RCW 77.15.080 to limit stops based on suspicion of "hunting activities" to the following circumstances: officers must be aware of facts creating a substantial possibility that a person to be stopped is presently engaged in an effort to kill, injure, harass, harvest, or capture wild animals or wild birds in an area where such animals may reasonably be expected.

¶15 The State does not quibble with this interpretation; instead, it claims this standard has been met. The State points out that it was modern firearm deer and elk season and Mr. Miller was driving slowly in a wildlife area while wearing an orange sweatshirt. According to the State, Mr. Miller might have been scouting out a potential hunting location as he drove along the green dot road. See Wash. Ct. of Appeals oral argument, State v. Miller, No. 38969-3-III (Mar. 5, 2024), at 24 min., 4 sec. through 27 min., 17 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://tvw. org.

¶16 We doubt that the State’s scouting theory meets the statutory requirement of active engagement in hunting. According to DFW, scouting is best performed well in advance of an actual hunting trip. See How To Prepare for Hunting Season, Wash. Dep’t of Fish & Wildlife, https://wdfw.wa.gov/hunting/requirements/preparing-to-hunt [https://perma.cc/25R8-E3CK]. Even if Mr. Miller was scouting out possible hunting locations, this does not mean that he was presently "engaged in … hunting activities." RCW 77.15.080.

[6] ¶17 But even if scouting qualified as "engag[ing] in … hunting activities," id., the record before us would still fail to justify the stop of Mr. Miller’s vehicle. The information...